Sunday, July 13, 2014

News Associations To File Legal Briefs In Florida Sunshine Law Case

Ellis

DAYTONA BEACH, Florida -- Several news associations will ask Florida's 5th District Court of Appeal for leave to file legal briefs in the Florida Sunshine Act's Public Records Law appellate case between the Economic Development Commission of Florida's Space Coast (EDC) and Brevard County Clerk of Court, Scott Ellis.

The EDC, a private entity contracted with Brevard County to promote economic development within the County, is appealing a judgment handed down in April by Brevard County Circuit Court Judge, John Dean Moxley, Jr., who ruled that the EDC is indeed a public agency subject to Florida public records law and must produce its documents related to BlueWare to Ellis.

"Economic development and nurturing economic advances promulgated by the Chambers of Commerce are appropriate governmental functions...," Moxley reasoned in his Final Judgment. "...the scope of the contract delegated economic development of Brevard County to the Economic Development Commission of Florida’s Space Coast, Inc. Accordingly, any records generated in carrying out those duties are public records subject to inspection."

The Florida Press Association, Associated Press, Lakeland Ledger, Sarasota Herald Tribune, Florida Society of Newspaper Editors, Florida Center for Investigative Reporting, and Florida First Amendment Foundation will seek to jointly file what is known as an amicus curiae brief - which means "friend of the court" - because those organizations are not actual parties to the lawsuit.

"The [economic development commissions] receive millions of dollars in public funds
and many, if not most, work on behalf of the state and local governments
to promote economic growth and development," said Florida First Amendment Foundation President, Barbara Petersen. "It's our position that the
public has a right - and the need - to know how their tax dollars are
being spent and why, and what those dollars are being spent on. That's
the purposes of our open government laws - accountability and
transparency."

Just last week, Brevard County Commissioners voted 4-1 that County Attorney Scott Knox file an amicus brief in support of the EDC's position that it is not a public agency. Commissioner Trudie Infantini was the sole "no" vote.

"My office has always maintained that the EDC
is subject to the Public Records laws under certain circumstances within
the scope of the contract," Knox wrote in an email to Brevard Times. "But the contract specifically says the EDC
was retained as an independent contractor, not as an agent or agency of
the County. The Court ruling states that the County delegated its
economic development function to the EDC, however, it is clear to me
that is not what happened."

"In my opinion, the Court’s ruling is overly
broad and will hamstring the EDC, thereby putting Brevard County at a
competitive disadvantage vis a vis other counties and cities in Florida,
not to mention states such Texas, Alabama, North Carolina, Georgia and
California, to name just a few," Knox said.

Weatherman

"This
litigation and ruling will be precedent-setting for the State of
Florida and every economic development organization working for jobs and
capital investment as this ruling could jeopardize effectiveness as
well as damaging the State of Florida's reputation in economic
development," EDC President Lynda Weatherman told Commissioners.
"It's not just investment in Brevard County, no one will invest in the
State of Florida."

But
the State of Florida's top economic development department appears not
to be climbing the same wall of worry expressed by Weatherman and Knox. "At this
time, DEO has no plans to file a brief," Florida Department of Economic
Opportunity spokesperson, Jessica Sims, said earlier this month.

The
EDC isn't finding much public support in the case from its state level
counterpart, Enterprise Florida, either. Enterprise Florida wouldn't
confirm whether or not it was going to file a brief in support of the
EDC.

BACKGROUND:

Former
Brevard
County Clerk of Court Mitch Needelman entered into a $6.1
million loan with Hewlett Packard after losing the primary election to
Ellis in 2012. Needelman then used the loan proceeds as an upfront
payment to BlueWare before the company ever fulfilled its scanning
contract with the Clerk's office.

BlueWare is the company caught up in a public corruption criminal case
brought by the Florida Department of Law Enforcement and State Attorney Phil Archer against former Clerk of
Court, Mitch Needelman, his former business partner Matt Dupree, and BlueWare CEO Rose Harr.

Ellis
continues to assert that the loan done by Needelman, BlueGEM, Harr, and
Hewlett-Packard was illegal and unconstitutional in repeated legal
actions brought by HP against the Clerk's Office for repayment of the
loan.

The EDC helped BlueWare
and some of its affiliated companies to
qualify for various government programs and other "workforce incentives"
that could
have totaled nearly $2 million in taxpayer money. In 2013, Ellis
repeatedly requested that the EDC turn over its BlueWare documents so
that he could defend the lawsuits brought by HP. However, the EDC
refused to hand over all of its BlueWare documents to Ellis.

After the Clerk's office learned from a Brevard Times investigative article
published on August 26, 2013 that State of Florida Department of
Economic Opportunity officials said that BlueWare's confidentiality had
lapsed and Governor Rick Scott's Office stated to Brevard Times that the BlueWare incentive
contract was canceled on April 5, 2013, the Clerk sent his auditors to
the EDC in Rockledge the next day to request a copy of the EDC file on
BlueWare. When the EDC refused to
comply with that last public records request, Ellis then filed the lawsuit which is now on appeal.